Slow Aether in Ontario, Too

This being Friday the 13th, my alternative post-title was the name of the song you’ll find here and here; on the other hand, I am allergic to most cats, black or otherwise. What does that have to do with the problem in the decision I’m about to write about? Well … how about this? If we can’t blame the problem on “slow aether”, maybe it’s just bad luck. I mean, what else could it be?

Consider these paragraphs from Taylor v Great Gulf Group Limited, 2015 ONSC 6891 (CanLII) released on 9 Nov. 2015. Taylor is the decision on a defendant’s unsuccessful motion to dismiss an action against it on the basis there was no genuine issue requiring trial.

[16] Mr. Forget relies upon the Supreme Court of Canada’s comments in Clements v. Clements, 2012 SCC 32 (CanLII), [2012] 2 S.C.R.181, at para. 8, where the Supreme Court of Canada reiterated that the test for causation remains the “but for” test. The court explained that test in the following way:

The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury — in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails. [Emphasis in original].

[17] Whilst I appreciate this paragraph sets out the technical aspect of the test, it cannot be looked at in isolation. The comments immediately following, at paras. 9 and 10 of the decision, clarify the reasoning:

The “but for” causation test must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury. See Wilsher v. Essex Area Health Authority, [1988] A.C. 1074 (H.L.), at p. 1090,per Lord Bridge; Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311.

A common sense inference of “but for” causation from proof of negligence usually flows without difficulty. Evidence connecting the breach of duty to the injury suffered may permit the judge, depending on the circumstances, to infer that the defendant’s negligence probably caused the loss. [Emphasis added].

[18] I pause at this juncture, to remind myself of the goals of this summary judgment hearing. At this stage, I am not deciding actual liability but the sole issue of whether there is a genuine issue requiring a trial. I/Land’s argument boils down to the proposition that there is no evidence of negligence because there is no evidence of causation. Respectfully, I disagree.

[19] I accept that the mere breach of a statutory authority or code does not, of itself, automatically give rise to civil liability. However, failure to observe the requirements set out by regulatory authorities is evidence of negligence: see Ryan v. Victoria (City), 1999 CanLII 706 (SCC), [1999] 1 S.C.R. 201;Danyliw v. 578693 Ontario Ltd., 2006 CanLII 13101 (ON SC), aff’d 2007 ONCA 447 (CanLII).

[20] The plaintiff’s allegations in this case, however, are not simply that I/Land installed a hose lacking CSA certification, thereby violating the OBC: it claims a variety of negligent conduct on I/Land’s part. Much of this negligence is confirmed by the discovery evidence of Fillipo Gaglione, a representative who worked for I/Land at the time of the construction. Gaglione’s evidence demonstrates a complete lack of knowledge with respect to the manufacture, testing, detail and design of the part. He was unable to identify from whom the defective part was purchased or who selected the part to be used in the construction of the home. When asked whether he knew the part was CSA approved, Gaglione answered that he didn’t know and that “different manufacturers label their products in different ways.” Gaglione was also uncertain as to whether the hose was required to be CSA-approved by the OBC.

[21] As a result, the plaintiff claims I/Land failed to properly train its agents in selecting adequate parts and negligently selected, purchased and installed a defective toilet hose pipe which lacked CSA certification, violated the OBC, and, without question, caused the damage sustained. In my view, the plaintiff has adduced, for the purposes of this hearing, more than sufficient evidence to support its allegations of negligence.

[22] Mr. Forget, however, seeks to parse these allegations into separate constituent elements and insists that in order to prove causation, the plaintiff must produce direct evidence that I/Land’s negligent conduct, as described above, actually caused the water damage that resulted. He points to Howard’s examination of other hoses, some of which were CSA approved, that failed and argues that the corollary is that the plaintiff cannot demonstrate that the mere absence of CSA approval caused the hose pipe in question to fail. The absence of any evidence of causation leads to the result that there is no genuine issue requiring a trial, and this court must dismiss the plaintiff’s action.

[23] I reject this argument for the following reasons. First, the fact that other CSA approved fittings manufactured by other companies might fail has no bearing on the question of whether, in the circumstances of this case, I/Land was negligent in its selection of a defective hose pipe whose origin and design were a matter of little or no importance to the installing contractor. Secondly, Mr. Forget’s approach directly contravenes the principles set out in the Clements case. The “but for” test is not a simple “join the dots” exercise in precisely proving causation. What needs to be proven is that there was “a substantial connection between the injury and the defendant’s conduct”: see Resurfice Corp. v. Hanke, 2007 SCC 7 (CanLII), [2007] 1 S.C.R. 333, at para. 23.

[24] On the facts of this case, it would certainly be open to a trier of fact to infer, as permitted by the language in Clements and Resurfice, that there was a substantial connection between I/Land’s negligent conduct in selecting and fitting a defective hose and the damage that occurred. Whether or not I/Land actually was negligent is a matter for trial.

[Bold emphasis added by me.]

About [23] – Well … no. What needs to be proven is whether “defendant’s negligence was necessary to bring about the injury”: see Clements, para. 8, quoted by the motion judge in para. 16, above. Nothing more, nothing less. Let’s assume that the SCC in Resurfice didn’t mean to suggest otherwise, because even if they did mean to suggest otherwise, Clements requires us to assume they didn’t. (At least so long as we’re speaking just about factual causation, and not remoteness aka factual cause.) Let’s assume factual causation is what the trial judge had in mind in para 23. (Para. 24 entails that conclusion, but were not there yet.) So, if the motion judge meant to assert that “substantial connection” means something more than necessary, the plaintiff would have had the right to complain, had the motion succeeded. If the trial judge meant to assert “substantial connection” means something less than necessary, the defendant has the right to complain, to appeal, and to succeed (depending on what the evidence is. I make no comment on the merits.)

About [24] Well … no, too. Maybe it would be open on the evidence for the trier of fact to make that inference, but it wouldn’t amount to a hill of beans, even a campfire’s worth, unless the inference was of a necessary connection in which case “substantial” is meaningless, if the issue is factual causation which is clearly what’s referred to in para. 10 of Clements. So, again, if the motion judge meant something more than necessary then … (see the para. above) and if something less than then … (see the para. above).

If you’re wondering, the motion judge didn’t define what he understood by the term “substantial connection”, which might be a good thing for the plaintiff. That’s because, if he had, it’s at least plausible the judge would have used some version of: a connection is “substantial” if it’s “material” which means “if it falls outside the de minimis range”, because that’s where one is likely to wrongly go if one is going to err and is a lawyer who practised in common law Canada between 1997 and 2007 even if mostly on the criminal side. One’s criminal practice wouldn’t help, either: look at the Canadian decision that ends the string of cases in para. 15 of Athey. (I don’t make these things up. I just point fingers, so to speak.)

So where does that leave us? Maybe here. Make the necessary changes.

From an Ontario Court of Appeal decision: Donley Investments Limited v. Canril Corporation, 2011 ONCA 625 (CanLII)

3. Faulty Causation Analysis

[11] The trial judge erred in her causation analysis. In her reasons for judgment, she recognized that the evidence establishing a causal link between the damage to the respondent’s building and any fault or wrong committed by the appellants was not strong and certainly was not made out on the basis of expert or scientific evidence. In her analysis of the applicable law, the trial judge did not refer to the standard “but for” test for causation. Rather, she held, citing Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, that causation could be established on the basis of material contribution to the occurrence of the injury that was greater than de minimis. In our view, the facts of this case do not justify deviating from the standard “but for” test for causation: Resurfice Corp. v. Henke, 2007 SCC 7 (CanLII), [2007] 1 S.C.R. 333. It follows that the trial judge erred in law by applying a more lenient test.

Or here, from Clements:

[53] We cannot be certain what the trial judge would have concluded had he not made the errors I earlier described. All that can be said is that the parties did not receive a trial based on correct legal principles. In my view, the appropriate remedy in these circumstances is an order for a new trial.

So, again, where does this leave us? Maybe more work for defence counsel, for which his firm will undoubtedly get paid. Next, on the assumption this is a subrogated action – i.e., plaintiff’s counsel is representing the property insurer looking to make some recovery – plaintiff’s counsel will get paid, too. And, of course, there’s more work for one or more appellate judges who undoubtedly don’t already have enough to do.

But then, what’s wrong with that? After all, the holiday season is approaching, and we’re supposed to adopt a spirit of giving, right? Who can complain about a gift of more paid work? (Clients aside, of course.)

That’s life.

If, by chance, somebody reading this went to law school with me, there’s a chance you’ll remember the play on my surname associated with the last sentence. That’s intended, here, too.


Addendum – 14 Nov 2015

This post is already too long but, for the sake of completeness, since I’ve suggested there’s a significant problem in the judge’s use of “substantial”, I’ll add a bit more, including a reference to the case that once wasn’t quite every Canadian (common law side) judge and civil litigator’s favourite case on many aspects of proof of causation and damages. Remarkably, it’s not mentioned in the Taylor reasons. I’d be astonished if it wasn’t mentioned in argument. I’ve mentioned it in passing. It is, of course, Athey v Leonati, [1996] 3 SCR 458, 1996 CanLII 183 (and, also, 140 DLR (4th) 235; [1997] 1 WWR 97; 203 NR 36; 31 CCLT (2d) 113; 81 BCAC 243; [1996] CarswellBC 2295; [1996] SCJ No 102 (QL); 132 WAC 243; [1996] ACS no 102; 66 ACWS (3d) 578. There might be more citations. This is CanLII’s list.)

We should all agree that if we look up the definition of “substantial” in any reputable dictionary, we won’t find “minor” used as part of the definition, or in an example, unless it’s for the purpose explaining “substantial” by referring to what it is not. And, if we look at what was actually written in Athey, we’ll find this these words in the sentence that concludes para. 41.1: “Even if the accidents played a minor role, … the accidents were still a necessary … cause.” (The underlining is in original.) We’ll also find this sentence concluding para. 43: “Although the accidents played a lesser role than the pre-existing problems, the accidents were nevertheless a necessary ingredient in bringing about the herniation.” (This time, I’ve added the emphasis.)

So, summing up, by going back to a para. 24, did the motion judge mean: “On the facts of this case, it would certainly be open to a trier of fact to infer that there was a necesssary, even if minor, connection between I/Land’s negligent conduct in selecting and fitting a defective hose and the damage that occurred.” Or something else? You decide.

Finally, because I’m admirer of O. Henry type endings, I’ll finish with this.

In causes of action based on negligence, “factual causation”, what the trial judge was focusing on, is only one part of the causation requirement. The other part is the concept known as either “remoteness” or “proximate cause”. Whatever label one uses, the content of that concept is a limitation on the extent of liability.

The motion judge was correct in stating “substantial connection” was used in Resurfice, however, the context is important. Let’s set that out by quoting the full text of para. 23 of Resurfice.

[23] The “but for” test recognizes that compensation for negligent conduct should only be made “where a substantial connection between the injury and the defendant’s conduct” is present. It ensures that a defendant will not be held liable for the plaintiff’s injuries where they “may very well be due to factors unconnected to the defendant and not the fault of anyone”: Snell v. Farrell, at p. 327, per Sopinka J.

I’ve added the emphasis to show there could be some ambiguity in the passage.

Let’s, then, go back to the original material: Snell. (Those of us still able to remember at least something they were told in first year law school may remember being told that that’s a good, general, rule.) This is the text of the paragraph, at p. 327 (in the SCR report) that contains the “substantial connection” phrase.

Causation is an expression of the relationship that must be found to exist between the tortious act of the wrongdoer and the injury to the victim in order to justify compensation of the latter out of the pocket of the former. Is the requirement that the plaintiff prove that the defendant’s tortious conduct caused or contributed to the plaintiff’s injury too onerous? Is some lesser relationship sufficient to justify compensation? I have examined the alternatives arising out of the McGhee case. They were that the plaintiff simply prove that the defendant created a risk that the injury which occurred would occur. Or, what amounts to the same thing, that the defendant has the burden of disproving causation. If I were convinced that defendants who have a substantial connection to the injury were escaping liability because plaintiffs cannot prove causation under currently applied principles, I would not hesitate to adopt one of these alternatives. In my opinion, however, properly applied, the principles relating to causation are adequate to the task. Adoption of either of the proposed alternatives would have the effect of compensating plaintiffs where a substantial connection between the injury and the defendant’s conduct is absent. Reversing the burden of proof may be justified where two defendants negligently fire in the direction of the plaintiff and then by their tortious conduct destroy the means of proof at his disposal. In such a case it is clear that the injury was not caused by neutral conduct. It is quite a different matter to compensate a plaintiff by reversing the burden of proof for an injury that may very well be due to factors unconnected to the defendant and not the fault of anyone.

Are you any clearer on what the SCC meant “substantial connection” to refer to in Snell or in Resurfice? Or, at the least, what we should now understand the SCC to have meant?

Are you any clearer on what the motion judge meant by his use of the phrase?

I’m not suggesting that, on the facts of Taylor as set out in the reasons, there could have been a genuine remoteness issue. I’m merely pointing out yet another problem in the analysis in the motion reasons that ought not to have occurred. Yes, I’m undoubtedly part of the “academic” legion (likely not the host, from the SCC’s perspective) who’ve “spilled ink” over issues related to “the proper test for causation in cases of negligence” so I’m more attuned than some to these issues but that’s not the point. Having said that, I much prefer the French text of para. 20 of Resurfice over the English. “[A] été traitée en profondeur dans la jurisprudence et dans la doctrine” is much grander that “Much judicial and academic ink has been spilled”. On the other hand, plain English provides a good conclusion. There’s sometimes a need to spill ink or, now, paint pixels. On its face, Taylor should not have been one of those times.

(Typos & grammar corrections made on Nov 15 that don’t affect substance.)


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